Douglas v (1) Ministry of Justice (2) Care UK
| Jurisdiction | England & Wales |
| Judge | Master Leonard |
| Judgment Date | 08 January 2018 |
| Court | Senior Court Costs Office |
| Date | 08 January 2018 |
| Docket Number | CL 1607001 |
Court and Reference: High Court, Senior Court Costs Office
Judge: Master Leonard
CL 1607001
Appearances: A Whittaker (instructed by Bindmans LLP) for the Claimant; S Reeves (instructed by the Government Legal Department) for the Defendants.
Facts: The Claimant's son had hanged himself in a prison where the Ministry of Justice, employed the prison officers and the Second Defendant, employed the healthcare staff. A PPO report had identified a number of institutional failings that had led to the death.
Proceedings were issued for damages in negligence and for breach of Art 2 ECHR but were stayed by agreement pending the outcome of the inquest. Particulars of Claim were never served. Four days before the inquest hearing, the Defendants admitted “full liability” on a joint basis, although the precise basis for that admission was not set out. After a lengthy inquest the jury returned a highly critical narrative conclusion. The Claimant subsequently accepted the Defendants' part 36 offer of £13,500 in settlement of the claim. The Claimant then sought the costs of attending the inquest of over £83,000.
The Defendants argued that they should not be required to pay inquest costs when liability had been admitted in full and little if any of the inquest evidence touched on quantum. For the purposes of establishing both negligence and the breaches of the HRA no more specific admission had been required. Furthermore it was argued that the costs of attending four pre-inquest hearings were not recoverable. The Defendants also challenged the proportionality and reasonableness of the costs claimed.
The Claimant argued that, as the remedy under the Human Rights Act 1998 was “just satisfaction”, in order to determine what constituted adequate redress, it was necessary to understand the nature of the breach of the relevant Convention right. As the Defendants had not admitted the nature of the admitted breach there had been no basis upon which to assess the quantum of the claim and to attempt settlement. The extent of the Defendants' failings had had to be ascertained from evidence gathered in the inquest process.
1. This is the assessment of the costs of the Claimant, payable by the Defendants under the terms of a consent order dated 22 March 2016.
2. The Claimant is the mother of Imran Douglas, who died on 13 November 2013 at the age of 18. In October 2013, Mr Douglas had received a life sentence, with a tariff of 18 years, for murder. Following sentencing, Mr Douglas had been transferred to HMP Belmarsh. On 13 November he was found by a prison officer hanging from a bed sheet in his cell. He was declared deceased at 9:51am.
3. The Prisons and Probation Ombudsman (“PPO”) undertook an investigation into Mr Douglas' death. His report was published in September 2014. The PPO found that Belmarsh was not an appropriate allocation for Mr Douglas, who should, following sentencing, have been returned to Feltham Young Offenders Institute. The PPO's report listed, in detail, a number of institutional failings that led to Mr Douglas' death, notably failure to implement appropriate transition plans; inadequate communication about Mr Douglas' allocation; an inadequate response at Belmarsh to a suicide self-harm warning form about Mr Douglas; a failure to open an ACCT care planning system for Mr Douglas; inadequate arrangements for vulnerable prisoners such as Mr Douglas; and an inadequate emergency response.
4. The first Defendant, the Ministry of Justice, employed the prison officers at HMP Belmarsh. The second Defendant, Care UK, employed the healthcare staff there. In November 2014, the Claimant instructed solicitors with a view to bringing a claim against both Defendants.
5. Bearing in mind limitation issues, a claim was issued on 11 November 2014 against both Defendants. The stated value of the claim was between £15,000.01 and £50,000. The claim form was endorsed in these terms:
“The Claimant seeks a declaration and damages for breaches of Arts 2, 3 and 8 of the European Convention of Human Rights, as incorporated by the Human Rights Act 1998, and/or damages for negligence arising from the death of Imran Douglas….”
6. Articles 2 and 8 protect the right to life and the right to respect for private and family life, home and correspondence. Article 3 prohibits torture and inhuman or degrading treatment or punishment.
7. On 15 January 2015, the Claimant's solicitors wrote to the Defendants via the Treasury Solicitor (subsequently the Government Legal Department) notifying them that proceedings had been issued and suggesting that once service had been effected, the parties agree to stay the claim until four months after the inquest had concluded. The Treasury Solicitor agreed and accepted service on behalf of the first Defendants: BLM acted for the second Defendants, though the Treasury Solicitor took the lead in subsequent negotiations.
8. The inquest into Mr Douglas' death was lengthy and, given the importance of the concerns raised by his death, of significant public interest. The following narrative is, as regards the inquest itself, taken from the Claimant's bill of costs and her Replies to the Defendants' Points of Dispute.
9. Pre-inquest reviews took place on 27 April 2015, 17 July 2015 and 18 September 2015 in which the Claimant's solicitors and counsel actively participated in a continuing process of identifying the scope of the inquest and of disclosure and witness evidence.
10. Their involvement extended, for example, to the making of submissions following which the Coroner determined that an accident in which Mr Douglas had been involved in April 2012, and in the course of which he had sustained a brain injury, would not fall within the scope of the inquest; agreed that disclosure should be made of various records including the deceased's prison and GP records; and directed that evidence be obtained from appropriate witnesses.
11. According to the Claimant, all of the work undertaken on those pre-inquest matters assisted in investigating the civil claim. According to the Defendants (and judging from the information before me about the scope of the inquest itself, this must I think be correct) all of this process, including disclosure, involved a large number of interested parties, not just the Defendants. For example, the Defendant says, the accident of April 2012 was considered on the basis that the Metropolitan Police might have some responsibility for Mr Douglas' death. Further, say the Defendants, the Coroner's power to order disclosure, which will reveal the detail of events, should lessen the work to be done by the interested parties at the inquest itself.
12. On 8 October 2015 the Government Legal Department, on behalf of both Defendants, wrote to the Claimant:
“The first and second Defendants admit full liability on a joint basis…. We would welcome the opportunity to explore terms of settlement.”
13. The Claimant responded on 9 October 2015. The letter was addressed jointly to the Government Legal Department and to BLM.
14. The Claimant's letter said:
“…In order for us to properly advise our client and to be in a position to explore settlement, please confirm the following…. The basis on which your clients are admitting liability, namely which failures do your respective clients accept:
(a) Were negligent;
(b) Were a breach of Imran's human rights including setting out which Articles of the ECHR your clients accept were breached;
(c) Were a breach of our client's ECHR rights…”
15. On the same date the Treasury Solicitor replied by email:
“… My client does not consider it appropriate to address specific failings until the inquest has concluded. I can confirm that an apology in general terms will be forthcoming in due course, the precise wording of which is currently being finalised…”
16. On 10 October 2015 BLM responded:
“In order to assist you I can confirm that I have not recommended to my client that the basis on which liability is admitted be fully set out. A full admission as to liability has been made on the basis of what has been set out in the claim form.…”
17. On 12 October 2015, the jury was empanelled and matters in relation to disclosure were addressed. The Claimant says that without the disclosure requested by counsel, the extent of liability in the claim would have remained unclear. It was not clear whether full prison and secure estate records had been disclosed. Submissions were made on the use of medical evidence and substantial disclosure was requested from the London Borough of Tower Hamlets, the extent of whose responsibility was at the time unclear, as was the extent to which the risk that Mr Douglas posed to himself had been communicated to prison staff by the London Borough of Tower Hamlets.
18. The inquest commenced on 13 October 2015 and continued until 3 November 2015. According to the bill of costs, on that date the jury returned a lengthy and highly critical narrative conclusion. This included findings that Mr Douglas' death had been contributed to by a lack of transition planning on his transfer to HMP Belmarsh. In relation to the failure of management and staff at Feltham to draft a transition plan, the jury noted that the Head of Young People at Feltham had ordered the preparation of a transition plan, but nothing was done to bring it about and neither the Head of Young People nor Mr Douglas' Offender Supervisor had taken responsibility for seeing that it was done. Assessments by the second Defendant's agents of Mr Douglas' mental health were found to have been perfunctory. It was noted that no-one had considered opening an ACCT despite almost every staff member having confirmed, when questioned, that one should have been opened.
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